Practical Solution to the Courts' Broad Interpretation of ...

A Practical Solution to the Courts' BroadInterpretation of the Lilly Ledbetter Fair Pay Act

KATIE E. JOHNSON*

TABLE OF CONTENTS

1. INTRODUCTION ........................................................... 124611. LEDRETTER v. GOODYEAR TIRE & RUBBER Co.: LILLY LEDBETrER'S

STORY .................................................................... 1248111. TITLE VII'S 180-DAY FILING PERIOD AND ITS COURT-IDENTIFIED

TRIGGERS................................................................. 1250A. Title VII's 180-Day Filing Period and the Development of the

"Continuing Effects Doctrine"................................... 1250B. The "Continuing Effects Doctrine ":~ Laying the Foundation for

the Ledbetter Decision........................................... 12531. National Railroad Passenger Corp. v. Morgan and the

"Discrete Act Analysis"........................................ 12532. Bazemore v. Friday and the "Paycheck Accrual Rule".. ...1255

IV. LEDBE7TER v GOODYEAR TIRE & RUBBER Co.: A COURT DIVIDED

........................................................................ 1256A. A Divided Supreme Court: The Ledbetter Majority......... 1257B. Ginsburg's Dissent.............................................. 1258

V. THE LILLY LEDBETTER FAIR PAY ACT ............................. 1261VI. THE COURTS' INCONSISTENT INTERPRETATION OF THE LILLY

LEDBETTER FAIR PAY ACT............................................. 1264A. "Breath[ingj Life Into Prior, Uncharged Discrimination". 1266B. Interpreting the LLFPA Narrowly ............................ 1267C. The Necessity of a Fact-Intensive Analysis .................. 1270

VII. SOLUTION: THREE-STEP ANALYTICAL FRAmEwoRK ........... 1271A. Step One: Classifying the Claims into One of Three Categories

............................ 1272B. Step Two: Identifying the Applicable Statute or Case Precedent

............................ 1273C. Step Three: Applying the Applicable Statute or Case Precedent

to the Facts........................................................ 12731. Sally 's Compensation Claim: An Application of the LLFPA

.................. .............................................. 1274

*J.D. Candidate 2011, The Ohio State University Moritz College of Law; M.Ed.,The Ohio State University, 2004; B.A., University of Colorado, 2002.

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2. Sally's Failure-to-Promote Claim: LLFPA Should Not Apply............................................................... 1275

VIII. CONCLUSION ........................................................ 1276

1. INTRODUCTION

"[Congress,] you did not mean what the Court said. So fix it. "

Answering Justice Ginsburg's call to action and correcting the injusticeagainst women's rights, Congress enacted the Lilly Ledbetter Fair Pay Act(LLFPA) 2 to amend the Court's "cramped" and "parsimonious"interpretation of Title VII of the Civil Rights Act of 1 9643 in Ledbetter v.Goodyear Tire & Rubber Co.4 The LLFPA essentially creates a new statuteof limitations regime for one class of cases, pay discrimination, 5 but theinclusion of the terms "other practices" in the statute's language begs thequestion: did Congress intend the Act to apply more broadly?6 The courts arebeginning to answer this question and have come to vastly differentconclusions. 7

The courts' broad and inconsistent interpretation of the Act appears tostem primarily from the fact that pay discrimination claims are oftenintertwined with other discrimination claims, such as a failure to promote or

1 Lani Guinier, Courting the People: Demosprudence and the Law/Politics Divide,89 B.U. L. REv. 539, 542 (2009) (quoting Ruth Bader Ginsburg, Celebration Fifty-Five:A Public Conversation Between Dean Elena Kagan '86 and Justice Ruth Bader Ginsburg'56-'58 at the Harvard Law School Women's Leadership Summit (Sept. 20, 2008) (fromnotes taken by and on file with author)).

2 Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (2009)(codified in scattered sections of 29 U.S.C. and 42 U.S.C.). The Act was signed into lawon January 29, 2009. See Gail Collins, Lilly's Big Day, N.Y. TIMEs, Jan. 29, 2009, atA27; Richard Leiby, A Signature with the First Lady's Hand in It, WASH. POST, Jan. 30,2009, at COI; Sheryl Gay Stolberg, Obama Signs Equal-Pay Legislation, N.Y.TIMEs (Jan. 29, 2009), http://www.nytimes.com/2009/01/30/Us/politics/30ledbetter-web.html.

3 42 U.S.C. § 2000e (2006).4~ Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).5 See Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, § 2, 123 Stat. 5, 5

(2009) ("The Supreme Court in Ledbetter ... significantly impairs statutory protectionsagainst discrimination in compensation that Congress established and that have beenbedrock principles of American law for decades.").

6 See Charles A. Sullivan, Raising the Dead? The Lilly Ledbetter Fair Pay Act, 84TuL. L. REv. 499, 527 (2010) (noting that one factor in the LLFPA achieving its fullpotential will depend on how the courts interpret "other practices").

7 See infra Part VI.

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hire, with the courts left to resolve the complexity of this interconnectivityindependently. While the convoluted nature of pay discrimination claimsmay explain the courts' broad interpretation and inconsistent application ofthe LLFPA to statute of limitations issues, awareness of the problem is notenough; a predictable approach for applying the LLFPA is necessary toprotect the interests of employees, employers, and society as a whole. 8

This Note analyzes and compares the courts' interpretation andapplication of the LLFPA, and offers a balanced solution that protects theinterests of both the employee and employer. Part 11 begins by providing thebackground of Lilly Ledbetter's personal story, which establishes a contextfor discussing the principals and policies of Title Vii's 180-day filing period.Part III briefly describes the development of Title VII's 180-day filing periodand, in addition, provides an overview of the seminal cases interpreting TitleVII's statute of limitations.

The Court's controversial and deeply divided decision in Ledbetter v.Goodyear Tire & Rubber Co., in which it applied Title VII's statute oflimitations to a compensation claim, is then addressed in Part WV. Congress'sresponse to the injustice of the Ledbetter decision, the enactment of theLLFPA, is reviewed in Part V. Part VI then analyzes and compares thecourts' interpretation and application of the LLFPA and also examines theintended scope of the legislation. A solution, the Three-Step AnalyticalFramework, is then presented and discussed in Part VII, which reconciles theinconsistencies in the courts' application of the LLFPA and reestablishes abalance between the employee's and employer's interests, as noted in theconclusion to this Note in Part VIII.

Lilly Ledbetter's story precipitated the legislation the, courts are nowbroadly and inconsistently interpreting. 9 The insidious and subtlediscrimination Lilly Ledbetter experienced is exactly the type ofdiscrimination Title VII was intended to redress,' 0 and the enactment of the

8 See Andrew J. Wistrich, Procrastination, Deadlines, and Statutes of Limitation, 50WM. & MARY L. Ri~v. 607, 617-18 (noting that statute of limitations may further theinterests of the plaintiff, the defendant, and society in two ways: (1) by helping to ensurethe accuracy of adjudication, "without which the adjudication of claims on theirsubstantive merits would arguably possess little societal value" and (2) by encouragingdefendants to timely file meritorious claims, "so as to maximize both the compensatoryvalue and the deterrent value of the litigation of claims"); 1 CALviN W. CoRMAN,LimrrA'rlONS of ACTIONS 11-14 (199 1) (discussing how the legislature must weigh theinterests of the plaintiff, the defendant, and society when determining a statute oflimitations period).

9 e infra Part VI.10 While Title VII has helped to address the inequities in our workforce, pay

disparities still exist. See Statemnent from US. Secretary of Labor Hilda L. Solis on EqualPay, U.S. DEP'T OF LAB., (Apr. 28, 2009),

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LLFPA was necessary to tear down the additional roadblock the Ledbetterdecision added on the path to equality. 11 The lessons learned fromLedbetter's story reinforce both the importance of the policy reasons for TitleV11's statute of limitations-maintaining a balance between employer andemployee interests' 2-and the need for a predictable analytical frameworkwhen applying the LLFPA to pay discrimination claims.'13

11. LEDBETTER v. GOODYEAR TIRE & RUBBER Co.:LILLY LEDBETTER'S STORY

"I wish my story had a happy ending. But it doesn 't. I hope ... in thefuture, what happened to me does not happen to other people who suffer

discrimination like I did. "14

Just before Lilly Ledbetter planned to retire in 1998, after nineteen yearsof employment with Goodyear, she received an anonymous tip that she wasbeing paid less than men in the same position.15 Ledbetter filed an EqualEmployment Opportunity Commission (EEOC) complaint upon receiving thenews and later sued Goodyear in federal court to enforce her right to equalpay for equal work,' 6 alleging that a series of discriminatory pay decisionsresulted in her being paid considerably less than males in the same position. 17

Ledbetter brought a Title VII disparate treatment claim against Goodyearfor the "unlawful employment practice" of discriminating against her

http://www.dol.govi/opa/media/press/wb/wb20090469.htm (noting that women earnseventy-eight cents for every dollar a man earns, with women of color earning even less).

11 See Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 645 (2007)(Ginsburg, J., dissenting) (focusing on the practical aspects of Ledbetter's case, Ginsburgnoted that pay disparities often occur in small increments, comparative pay information isoften not available to employees, and employees are not likely to bring a federal caseagainst an employer when it is likely the employee "is averse to making waves" in anontraditional work environment such as Ledbetter's).

12 See CoRMAN, supra note 8, at 11-14 (discussing how the legislature must assessthe subject and the purpose of a specific statute in order to identify an appropriate statuteof limitations period to balance the interests of potential litigants); infra Part 111.

13 The predictable analytical framework is presented in the solution section of thisNote. See infra Part VII.

14 Justice Denied? The Implications of the Supreme Court's Ledbetter v. GoodyearEmployment Discrimination Decision: Hearing Before the H. Comm. on Educ. & Labor,110th Cong. 11 (2007) (prepared statement of Lilly Ledbetter) [hereinafter LedbetterHouse Hearing].

15 See id. at 12 (noting that at retirement, Ledbetter was making "twenty-percent lessthan the lowest paid male supervisor in the same position").

16 See id17 Id.

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because of her sex. 18 Under Title VII, Ledbetter had the burden of persuasionthat the differential treatment of paying her less than a similarly situated manwas rooted in discriminatory intent. 19 A jury awarded Ledbetter $223,776 inback pay and more than $3 million in punitive damages for her injuries afterfinding that it was "more likely than not" that Ledbetter was paid an unequalsalary by Goodyear because of her sex.20

Goodyear appealed the decision to the U.S. Court of Appeals for theEleventh Circuit, which, departing from the rulings of nine other federalappellate courts, 21 found that Ledbetter's suit was brought too late. 22

Ledbetter's case turned on whether her EEOC complaint was timely filedwithin the 180-day filing period. 23 The circuit court found that her complaintwas not timely filed, noting that while an employee may receive a paycheckreflecting the result of a discriminatory pay decision within the 180-dayfiling period, the actual discriminatory decision to pay Ledbetter less felloutside the filing period. 24 Ledbetter argued that paychecks received within

18 See Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 624 (2007)("Ledbetter asserted disparate treatment, the central element of which is discriminatoryintent."). A disparate-treatment claim comprises of two elements: an employmentpractice and discriminatory intent. Id. at 631. Ledbetter could have avoided provingdiscriminatory intent if she brought a disparate impact claim but likely would have haddifficulty due to the fact that Goodyear's pefformance-based pay system appearedfacially neutral and therefore not susceptible to claims that it adversely affected membersof protected groups. Additionally, Ledbetter likely brought a disparate treatment claiminstead of a disparate impact claim because compensatory and punitive damages areavailable only for disparate treatment. See 42 U.S.C. § 1981a(a)(1) (2006) (allowing forcompensatory and punitive damages to be sought against an employer "who engaged inunlawful intentional discrimination (not an employment practice that is unlawful becauseof its disparate impact)").

19 See Ledbetter, 550 U.S. at 659 (Ginsburg, J., dissenting).20 Id. at 644 (quoting record from below).21 See id. at 654-55 (citing appellate court decisions supporting the opposite

conclusion of the 11Ith Circuit and the majority's decision in Ledbetter); Brief for thePetitioner at 13, Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) (No. 05-1074) [hereinafter Brief for the Petitioner] (citing that the majority of the courts ofappeals and the EEOC had recognized that "Morgan and Bazemore establish the timelyfiling requirements for disparate pay claims under Title VII: each paycheck that offers awoman less pay than a similarly situated man because of her sex is a separate violation ofTitle VII with its own limitations period, regardless of whether the paycheck simplyimplements a prior discriminatory decision made outside the limitations period").

22 Ledbetter v. Goodyear Tire & Rubber Co., 421 F.3d 1169 (11Ith Cir. 2005).Reversing, the Court of Appeals for the 11Ith Circuit found Ledbetter's claim was time-barred, relying in part on Goodyear's system of annual merit-based raises. See id. at1171, 1182-83.

23 Id. at 1171.2 4 Id. at 117 8-80.

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the 180-day period were actionable because they "implement [ed] a priordiscriminatory decision." 25 Grounding her argument in the "paycheck accrualrule," 26 Ledbetter argued that because her paychecks reflected an intentionaldiscriminatory pay decision, they were actionable despite the lack of presentdiscriminatory intent within the 180-day filing period. 2 7 Ruling againstprecedent of most circuit courts, 28 the I11th Circuit found that becauseLedbetter did not file a claim when the discriminatory decision to pay herless occurred, her claim was untimely. 29

The 11Ith Circuit concluded Ledbetter's claim was untimely even thoughshe had no way of knowing of the discriminatory pay decision at the time itwas made. 30 She was barred from bringing her claim of discriminationbecause she failed to file a complaint with the EEOC for a discriminatory actthat she had absolutely no notice of when it occurred.3' To understand howthe 11Ith Circuit arrived at this harsh conclusion, which was subsequentlyaffirmed by the Supreme Court, it is necessary to review the policy behindTitle VII's 180-day filing period and, in addition, to review the SupremeCourt's precedent in interpreting when a discriminatory act triggers this 180-day filing period.

111. TITLE VII'S 180-DAY FILING PERIOD AND ITSCOURT-IDENTIFIED TRIGGERS

A. Title VII's 180-Day Filing Period and the Development of the"Continuing Effects Doctrine "

According to Title VII of the Civil Rights Act of 1964, as amended bythe Civil Rights Act of 1991, it is unlawful for an employer to discriminate"6against any individual with respect to his [or her] compensation ... because

25 Brief for the Petitioner, supra note 2 1, at 13.26 See Bazemore v. Friday, 478 U.S. 385 (1986) (Brennan, J., concurring). The

"paycheck accrual rule" finds its source in the dicta of Justice Brennan's concurringopinion: "Each week's paycheck that delivers less to a black than to a similarly situatedwhite is a wrong actionable under Title VII, regardless of the fact that this pattern wasbegun prior to the effective date of Title VII." Id. at 3 95-96.

2 7 See Ledbetter, 421 F.3d at 1181.28 See supra note 21 and accompanying text.29 Ledbetter, 421 F.3d at 1189.

3Id;see also Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 645 (2007)(Ginsburg, J., dissenting) ("Comparative pay information ... is often hidden from theemployee's view. Employers may keep under wraps the pay differentials maintainedamong supervisors. . . .)

31 See Ledbetter House Hearing, supra note 14, at 11I (prepared statement of LillyLedbetter).

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of such individual's race, color, religion, sex or national origin."132 Thisstatutory prohibition against intentional discrimination applies to faciallyneutral employment practices that have a disparate impact on a protectedgroup. 33 It is necessary for an employee to exhaust administrative remediesbefore filing a suit against an employer under Title VII.34 As part of itsadministrative requirements, an individual must file a complaint with theEEOC within 180 days of the alleged unlawful employment practice orwithin 300 days if the claim goes directly to a state agency.35 The 180-dayfiling period serves as a statute of limitations because if an employee fails tofile an EEOC claim within the statutory filing period, the employee isprecluded from later challenging the alleged discriminatory employmentpractice in court.36

Title VII's requisite 180-day filing period functions as a remedialmeasure to protect the interests of both the employer and employee. 37 Itreflects a policy decision that 180 days is enough time to recognize and bringa claim of discrimination, furthering the plaintiffs and society's interests inhaving claims prosecuted while also being a short enough period to protectthe defendant, the court, and society from wasting time and resourceslitigating old claims. 38 In addition to eliminating the employer's burden ofdefending against old claims,39 the 180-day period encourages claims of

32 42 U.S.C. § 2000e-2 (2006). Specifically, section (a)(1) of the Act states:

It shall be an unlawful employment practice for an employer .. . to fail or refuise tohire or to discharge any individual, or otherwise to discriminate against anyindividual with respect to his compensation, terms, conditions, or privileges ofemployment, because of such individual's race, color, religion, sex, or nationalorigin.

Id § 2000e-2(a)(1).33 See generally BARBARA L. SCHLEI & PAUL GROSSMAN, EMPLOYMENT

DIsCRUMINATioN LAW 1-12 (1 st ed. 1976).34 42 U.S.C. § 2000e-5(f)(1) (2006).35 Equal Employment Opportunity Act of 1972, Pub. L. No. 92-26 1, § 4(a), 86 Stat.

103, 105 (codified as amended at 42 U.S.C. § 2000e-5(e)(1) (2006)).36 See Wistrich, supra note 8, at 609-10 (defining a statute of limitation as the

deadline by which a claimant must file a lawsuit, after which the right to a decision on themerits and eligibility for a remedy are forfeited).

37 See Joseph M. Aldridge, Note, Pay-Setting Decisions as Discrete Acts: The CourtSharpens Its Focus on Intent in Title VllActions in Ledbetter v. Goodyear Tire & RubberCo., 86 NEB. L. Rrv. 955, 956 (2007) (noting how discriminatory pay-setting decisionscan present unique challenges to both employees and employers).

38 CORMAN, supra note 8,at § 1. 1.39 See Wistrich, supra note 8, at 616-18 (noting that policies providing strong

support for limiting civil actions include: (1) promoting repose, (2) minimizing

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discrimination to be brought as soon as possible, protecting employees byensuring evidence and witnesses in support of the claim are preserved andreliable. 40 Therefore, as recognized by the Court in Ledbetter, the 180-dayEEOC filing period is really a reflection of Congress's intent to encouragethe prompt processing of all charges of employment discrimination, which isin the interests of both the employee and employer. 4 '

It is important to note that the 180-day filing period is an extension fromTitle VII's original ninety-day filing period for charges of discrimination. 42

Recognizing the harsh effects the original ninety-day filing period had onemployees, Congress reevaluated the interests of the employee, theemployer, and society and found the balance was better struck by extendingthe filing period from ninety to 180 days. 43 Prior to Congress extending thefiling period to 180 days, courts had adopted the "continuing effectsdoctrine" to soften the effects the strict application of the ninety-day filingperiod posed.44 Under the "continuing effects doctrine," the courts allowed aclaim of discrimination to be brought outside the statutory time limit toaccount for situations, such as Lilly Ledbetter's, where it was difficult for theemployee to discern when the discriminatory acts took place. 45 The

deterioration of evidence, (3) encouraging the prompt enforcement of substantive law,and (4) avoiding the retrospective application of contemporary standards).

4 01Id.41 Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 630-31 (2007).42 Civil Rights Act of 1964, Pub. L. No. 88-352, § 706(d), 78 Stat. 241, 260

(codified as amended at 42 U.S.C. § 2000e-5(e)(l) (2006)).43 See Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, § 4(a), 86

Stat. 103, 105 (codified as amended at 42 U.S.C. § 2000e-5(e)(1) (2006)). At the sametime, Congress also expanded the state filing limit with fair employment agencies from180 days to 300 days. Id

44The Supreme Court, 2001 Term-Leading Cases, 116 HARv. L. REv. 200, 352,357 (2002); see also Michael Lee Wright, Civil Rights-Time Limitations for Civil RightsClaims-Continuing Violations Doctrine, 71 TENN. L. REv. 3 83, 3 85 n. 15 (2004). Wrightnoted:

Federal courts "began to refuse to automatically dismiss" belated discriminationclaims for three main reasons. First, the purpose of Title VII is to "root outdiscrimination and make injured parties whole." Second, various reasons exist forwhy employees might not file a discrimination claim within the time prescribed bystatute, some of which justify extending opportunities for relief to employees. Forinstance, employees may not know of the time limitation for filing the complaint.Also, employees may fear retaliation and thus refrain from promptly filingdiscrimination complaints. Finally, it may be difficult to discern when thediscriminatory acts took place. The Sumner court found that many discriminatoryacts could be described as "unfoldling] rather than occurring]."

Wright, supra, at 3 85 n. 15 (citations omitted).45 Wright, supra note 44, at 385 n. 15.

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application of the "continuing effects doctrine" and its effect on Title Vii'sstatute of limitations is at the core of both the Ledbetter decision, as well asCongress's subsequent decision to enact the LLFPA.

To understand the split in the courts' application of the "continuingeffects doctrine" and its effect on the 180-day filing period in paydiscrimination claims, 46 it is necessary to review the Supreme Courtprecedent that created the ambiguity and which ultimately led to theLedbetter decision.

B. The "Continuing Effects Doetine ": Laying the Foundation for theLedbetter Decision

The divided Ledbetter Court reflects the diverging interpretations of twopreviously decided Title VII statute of limitations cases: National RailroadPassenger Corp. v. Morgan47 and Bazemore v. Friday.48 The cases establishthe doctrines of "discrete act analysis" and the "paycheck accrual rule,"respectively, which the lower courts have applied inconsistently and are atthe core of the disagreement between the majority and the dissent inLedbetter. Both the majority and the dissent rely on Morgan and Bazemore tolay the foundation in support of their decisions, which ultimately lead to twovery different conclusions. 49 In order to understand the divergence, a briefsummary of the two doctrines is necessary.

1. National Railroad Passenger Corp. v. Morgan and the"Discrete Act Analysis"

The Supreme Court in Morgan first applied the doctrine of "discrete actanalysis" to determine whether a claim of discrimination fell within the 180-day filing period by categorizing the act as either a "discrete act" or a"hostile work environment claim." 50 Morgan establishes the differencebetween related discriminatory acts that collectively constitute a single causeof action and discrete discriminatory acts that are considered separate causesof actions.51 Discrete acts of discrimination, such as termination, failure topromote, denial of transfer, or refusal to hire constitute unlawful employmentpractices under Title VII and trigger the 180-day filing period on the date

46 See discussion and cases cited infra note 72.47 Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).48 Bazemore v. Friday, 478 U.S. 385 (1986).49 See infra Part WV.5 0 See Morgan, 536 U.S. at 115-17.51 See id at 114-15.

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they occur.52 if an employee fails to file a claim within 180 days, he or she isbarred from bringing the action. 53 Addressing the application of the"6continuing effects doctrine" as an exception to Title V11's 180-day filingrequirement, the Court in Morgan distinguished between actions that arediscrete and actions that make up a hostile work environment. 54 In makingthe distinction, the Court noted that "discrete acts, such as termination,failure to promote, denial of transfer, or refusal to hire," are examples ofemployment actions that are "easy to identify" 55 and, therefore, because anemployee is put on notice of the discriminatory act, a claim must be filedwithin the 180-day filing period from the day in which it "occur[s]." 56

The Court contrasted the "discrete acts" of a promotion or demotion withthe individual acts making up a "hostile work environment" claim, whichconsists of a series of acts that constitute a single violation.57 Arriving at thisdistinction, the Court rejected the application of the "continuing effectstheory" to discrete discriminatory acts, which would have allowed anemployment practice that occurred outside the applicable 180-day period tobe actionable if it "related to" a discriminatory act that occurred within the180-day period. 58 By making this distinction, discrete acts that occurredoutside the 180-day period for filing a claim were time-barred-no matterhow related the act may have been to a later discriminatory act.

The only exception to the "discrete act" analysis is a hostile workenvironment claim. 59 In a hostile work environment claim, a complaint isconsidered timely as long as the most recent harassing act occurred withinthe 180-day filing period.60 Explaining the exception, the Court noted, "[a]hostile work environment claim is comprised of a series of separate acts thatcollectively constitute one 'unlawful employment practice."' 61 Therefore,notwithstanding the one exception of a hostile work environment claim, thegeneral rule that discrete acts cannot be aggregated to toll the statute oflimitations applied in all other cases, a claim of discrimination must be filedwithin 180 days of the act occurring.

52 Id. at 114.5 3 Id at 113.5 4 Id at 115.55 1Id at 114.56 Morgan, 536 U.S. at 109 n.5.57Id at 117.58 See id. at 11 2 ("[D]iscrete acts that fall within the statutory time period do not

make timely acts that fall outside the time period.").59 Id. at 115.60 Id. at 117.61 Id

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As a result of Morgan, an EEOC complaint was considered timely if: (1)an employee filed a complaint within 180 days of a discrete discriminatoryact;62 or (2) an employee filed a complaint within 180 days of a single actthat comprised a "hostile work environment" claim, even if other acts thatconstituted the claim fell outside the 180-day period.63 While Morgan madethe distinction between a discrete discriminatory act and an act comprising ahostile work environment claim clear for determining the start of the 180-dayfiling period, the decision failed to address where a discriminatory paydecision fell in this categorization.

The unique nature of discriminatory pay claims and their failure to fallperfectly into one of the two categories identified in Morgan is whatultimately led to Ledbetter, but in order to fully understand the policyarguments in Ledbetter's case, the implications of the "paycheck accrualrule" introduced by the Court in Bazemore must first be discussed.

2. Bazemore v. Friday and the "Paycheck Accrual Rule"

Applying the "continuing effects doctrine" to a discriminatory paysystem, the Court in Bazemore held that the continued application of adiscriminatory pay structure constituted a present violation under Title VII.64In Bazemore, the Court found that an employer had committed an unlawfulemployment practice each time it paid black employees less than similarlysituated white employees. 65 Finding that each week's paycheck delivering"less to a black than to a similarly situated white is a wrong actionable underTitle VII,"166 the Court established what would come to be known as the"6paycheck accrual rule."167

Courts subsequently interpreted Bazemore as recognizing the realities ofwage discrimination, that regardless of whether the discriminatory decisionto pay an employee less fell outside the 180-day filing period, the wrong wasstill actionable because the employer discriminated each time it issued apaycheck.68 They reasoned that the issuance of each paycheck reflecting anamount less than that payable to similarly situated employees had an

62 See Morgan, 536 U.S. at 1 10.63 Id. at 118.64 Bazemore v. Friday, 478 U.S. 385, 397 n.6 (1986) (Brennan, J., concurring).65 Id. at 395-96.6 6 Id. at 395.67 I.at 3 95-96.68 Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 654 (2007) (Ginsburg,

J., dissenting).

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employer adhered to a nondiscriminatory compensation regime constituted acognizable harm.69

The Supreme Court's failure to address the correctness of the "paycheckaccrual rule" 70 courts had adopted from the Bazemore ruling set the stage forinconsistent interpretation and application of Title VII's 180-day filingperiod in discriminatory pay claims. This uncertainty of whether Morgan's"discrete act" analysis applied to claims of pay disparity led to the reversal ofLedbetter's jury verdict by the 11Ith Circuit, and ultimately to the SupremeCourt granting certiorari to resolve the circuit court split.7 ' In light of thehistorical development and purpose of the 180-day filing period, in additionto the Court's precedent as established by Morgan and Bazemore, theSupreme Court in Ledbetter attempted to resolve the question of when the180-day filing period began to toll for pay discrimination claims.72

IV. LEDBETTER v. GOODYEAR TIRE & RUBBER Co.: A COURT DIVIDED

Echoing the reasoning of nine federal courts of appeals and the EqualEmployment Opportunity Commission (EEOC), 73 the four dissentingJustices found: "Paychecks perpetuating past discrimination . .. areactionable not simply because they are 'related' to a decision made outsidethe charge-filing period, but because they discriminate anew each time theyissue."74

69 Id. at 654-56 (citing circuit court and EEOC decisions citing Bazemore andapplying the paycheck accrual rule).

7 0 Bazemore, 478 U.S. at 395-96 (Brennan, J., concurring).71 Compare Ledbetter v. Goodyear Tire & Rubber Co., 421 F.3d 1169, 1189 (11Ith

Cir. 2005), with Wedow v. City of Kansas City, 442 F.3d 661, 671 (8th Cir. 2006)(interpreting Bazemore as establishing that "each week's paycheck that delivers less on adiscriminatory basis is a separate Title VII violation"), and Forsyth v. Fed'n Empl. &Guidance Serv., 409 F.3d 565, 573 (2d Cir. 2005) ("[E]very paycheck stemming from adiscriminatory pay scale is an actionable discrete discriminatory act.").

72 While the Court's majority did not explicitly address the circuit split at the time ofthe Ledbetter decision, a total of nine circuit courts and the EEOC had all determined thatthe discrete act analysis did not apply to discriminatory pay claims. See Ledbetter, 550U.S. at 654-56 (Ginsburg, J., dissenting) (citing federal courts of appeals and EEOCrulings); see also The Fair Pay Restoration Act: Ensuring Reasonable Rules in PayDiscrimination Cases: Hearing of the S. Comm. on Health, Educ., Labor, & Pensions,I1I0th Cong. 2 (2008) [hereinafter Ledbetter Senate Hearing] (opening statement of Hon.Edward M. Kennedy, Chairmnan, S. Comm. on Health, Educ., Labor, & Pensions) (notingthe nine circuit courts finding each paycheck to be a discrete discriminatory act).

73 See Ledbetter, 550 U.S. at 654-56 (Ginsburg, J., dissenting) (citing federal courtof appeals and EEOC rulings).

74 Id. at 647.

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A. A Divided Supreme Court: The Ledbetter Majority

In Ledbetter, the Supreme Court held in a 5-4 decision that the plaintiffmay not attribute intent from past discriminatory pay decisions to make thepresent effects of such decisions independently actionable under Title VII; inother words, that the "continuing effects doctrine" did not apply.75 Ruling infavor of the employer, the Court found Ledbetter's claim untimely becauseGoodyear's intentional discriminatory decision to pay her less than similarlysituated males had occurred outside Title VII's 180-day charging period.76

Under Title VII, an employee must file a claim with the EEOC within 180days of the unlawful employment practice. 77 The slim majority of the Courtfound that while Ledbetter filed within 180 days of learning that she receiveddiscriminatory pay from Goodyear, her claim was not timely because she hadfailed to file within 180 days of the discriminatory decision to pay her less.7 8

As a result of the decision, Goodyear owed Ledbetter nothing fordiscriminating against her on account of her sex. 79 The majority came to itsconclusion by analogizing pay discrimination claims to cases involving fullycommunicated public acts of discrimination, such as termination or a denialof tenure, 80 and thereby failed to acknowledge the differences between theseovert acts and the secretive nature of pay discrimination.8'

The Ledbetter majority, relying on Morgan's discrete act analysis, foundthat "because a pay-setting decision is a 'discrete act,' it follows that the

75 Id. at 624 (majority opinion).7 6 Id. at 633-43.77 42 U.S.C. § 2000e-5(e)(1) (2006) (stating in Section 706(e) of the Act that an

individual must file a charge of discrimination with the EEOC "within one hundred andeighty days after the alleged unlawful employment practice occurred," and if theemployee files a charge of discrimination with a state agency with appropriatejurisdiction, the employee is allowed 300 days to file her charge with the EEOC).

78 Ledbetter, 550 U.S. at 633-43.79 In support of this result, the Bush Administration filed a Supreme Court amicus

brief arguing that the employee must file a claim within 180 days of the initialdiscriminatory decision to pay an employee less, whether or not detectible. See Brief forthe United States as Amicus Curiae Supporting Respondent at 6-8, Ledbetter v.Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) (No. 05-1074).

80 See Ledbetter, 550 U.S. at 625-26 (discussing United Air Lines, Inc. v. Evans,431 U.S. 553, 554 (1977) (female forced to resign due to policy disallowing marriedfemale flight attendants); Del. State Coil. v. Ricks, 449 U.S. 250 (1980) (decision to denytenure)).

81 See Ledbetter House Hearing, supra note 14, at 13 (statement of WadeHenderson, President & CEO, Leadership Conf. on Civil Rights) ("As Justice Ginsbergpointedly emphasized in her dissent, pay discrimination is a hidden discrimination that isparticularly dangerous due to the silence surrounding salary information in the UnitedStates.").

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period for filing an EEOC charge begins when the act occurs." 82 LimitingBazemore to discriminatory pay decisions that involve "faciallydiscriminatory" pay systems 83 -which were unlike the secretivediscriminatory pay practices in Ledbetter's case-the Court held thatLedbetter's failure to file an administrative discrimination claim within 180days from the date the discriminatory pay-setting decision was madeprecluded her from bringing her claim.84

Analogizing Ledbetter's pay-discrimination claim to discretediscriminatory acts, such as termination 85 or denial of tenure,86 the Courtdistinguished Bazemore from Ledbetter. 87 Noting that Goodyear's paysystem was neutral on its face and not adopted "in order to discriminate," 88

the majority found that the paychecks issued during the charging period weremerely the effect of discriminatory acts that occurred outside the period anddid not support a timely cause of action.89 In support of its decision not totreat each paycheck as a discrete discriminatory employment practice, theCourt emphasized the importance of protecting the employer from "staleclaims."90

B. Ginsburg's Dissent

The Ledbetter dissent, issued by Justice Ginsburg, emphasized theCourt's failure to comprehend the insidious way that women can be victimsof pay discrimination. 91 Drawing attention to the "real world" context inwhich pay discrimination occurs, Ginsburg emphasized how paydiscrimination is cumulative over time, and in addition, how employees arenot likely to inquire into the salaries of coworkers or are forbidden fromdoing so, thereby making it almost impossible for an employee to ever bringa Title VII claim within the I 80-day filing period.92

82 Ledbetter, 550 U.S. at 62 1.83 Id. at 634.84 Id. at 628-29.85 See United Air Lines, Inc. v. Evans, 431 U.S. 553, 554 (1977).86 See Del. State Coil. v. Ricks, 449 U.S. 250, 250 (1980).87 Ledbetter, 550 U.S. at 633-37.8 8 Id. at 637.89 Id. at 63 9-40.90 Id. at 63 1.91 Id. at 649-50 (Ginsburg, J., dissenting).92 Id.; see also Deborah L. Brake, The Failure of Title VII as a Rights-Claiming

System, 86 N.C. L. REv. 859, 873-74 (2008) (discussing statutes of limitations as appliedto Title V11, emphasizing how Title VII's doctrines place unrealistic expectations andpressure on employees to recognize and challenge discrimination quickly).

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In contrast to the majority, the dissent emphasized why Morgan'sdiscrete act analysis should not apply to pay discrimination: unlike acts of"termination, failure to promote, denial of transfer or refusal to hire,"9 3 paydiscrimination does not fall into the "discrete acts" category as an "easy toidentify" act.94 Grounding analysis in "the realities of the workplace," JusticeGinsburg explained that unlike promotions, transfers, hirings, and firings,which are generally public events where "an employee can immediately seekout an explanation and evaluate [the decision] for pretext," compensationdiscrimination and its resulting disparities are often "hidden from sight."195 Inaddition to the fact that employee compensation is often kept private byemployers, 96 thereby preventing salary comparisons, pay disparities oftenoccur in small increments such that "cause to suspect that discrimination is atwork develops only over time." 97 Thus, Justice Ginsburg argued thatMorgan's discrete act analysis does not apply because pay discrimination isnot a fully communicated discrete act-like termination, failure to promote,or refusal to hire-as nothing in Ledbetter's case would have placed her onnotice of an adverse discriminatory decision, prompting her to file anadministrative claim.98

93 Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002).94 Ledbetter, 550 U.S. at 649 (Ginsburg, J., dissenting).95 Id.96 See Brief for the Petitioner, supra note 2 1, at 26 (noting that a denial of a raise is

not grounds for filing an EEOC charge and that it is not uncommon for employee paylevels to be kept confidential or for workers to be reluctant to share salary informationwith each other) (citing Leonard Bierman & Rafael Gely, "Love, Sex and Politics? Sure.Salary? No Way" Workplace Social Norms and the Law, 25 BERKELEY J. EMP. & LAB.L. 167, 171 (2004) (contrasting the prevalence of workplace norms and rules againstdiscussing salaries with the fact that only one in ten employers have actively adopted"pay openness" policies)).

97 Ledbetter, 550 U.S. at 645 (Ginsburg, J., dissenting).98 Id; see also Martha Chamallas, Ledbetter, Gender Equality and Institutional

Context, 70 OHIO ST. L.J. 1037, 1042 (2009) ("Research indicates that it is often verydifficult for employees to recognize when they have experienced discrimination. At theindividual level, social psychologists have documented the tendency of victims tominimize events and to resist perceiving and acknowledging bias, even when theyexperience behavior that objectively qualifies as discrimination."); Adrienne Colella etal., Exposing Pay Secrecy, 32 ACAD. OF MGMT. REv. 55, 57 (2007) (citing a poll in which36 percent of surveyed employers "prohibited discussion of pay"); Charles Stangor et al.,Reporting Discrimination in Public and Private Contexts, 82 J. PERSONALITY & SOC.PSYCHOL. 69, 73 (2002) (discussing how "the costs of reporting discrimination areparticularly salient when the social context includes members of another socialcategory").

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Arguing that precedent established that the "paycheck accrual rule"applied in pay discrimination cases,99 Justice Ginsburg emphasized how paydiscrimination claims "have a closer kinship to hostile work environmentclaims than to charges of a single episode of discrimination."'100 JusticeGinsburg analogized pay discrimination to Morgan, in which thediscrimination accumulates over time and "cannot be said to occur on anyparticular day," but "occurs over a series of days or perhaps years and, indirect contrast to discrete acts, a single act . .. may not be actionable on itsown." 10' Supporting the analogy to a hostile work environment claim andspeaking to the majority's concern of protecting the employer from "staleclaims," 102 Justice Ginsburg noted that in a case like Ledbetter's,management should have been on notice of the existence of thediscriminatory conduct considering the persistence of its occurrence:producing a cognizable harm.103 Moreover, Ginsburg noted that "[d]octrinessuch as 'waiver, estoppel, and equitable tolling' 'allow us to honor TitleVII's remedial purpose without negating the particular purpose of the filingrequirement, to give prompt notice to the employer."" 04

Frustrated by the additional roadblock the majority's holding placed onachieving equality, Justice Ginsburg concluded the reading of her dissent byissuing a challenge to Congress to fix the Court's mistake, stating: "[o~nceagain, the ball is in Congress' [sic] court."105 Taking Ginsburg's challenge,Congress enacted the LLFPA to ensure "that victims of pay discriminationon the basis of race, sex, color, religion, national origin, disability, or age areentitled to justice with each paycheck." 106

9 9 Ledbetter, 550 U.S. at 645-48 (Ginsburg, J., dissenting) (citing Bazemore andlower court cases).

100 Id at 648.101 Id. (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002)).102 See id at 63 1-32 (majority opinion).103 Id. at 648 (Ginsburg, J., dissenting); see also Chamallas, supra note 98, at 1045

(discussing Ginsburg's dissent and how Goodyear knew or should have known about thepay disparities and yet apparently did nothing to address and correct the situation in thenearly twenty years that Ledbetter worked for Goodyear).

104 Ledbetter, 550 U.S. at 657 (Ginsburg, J., dissenting) (quoting Morgan, 536 U.S.at 12 1).

105 Id. at 661 ("Once again, the ball is in Congress' [sic] court. As in 1991, theLegislature may act to correct this Court's parsimonious reading of Title VIl."); see alsoLedbetter House Hearing, supra note 14, at 3 (statement of George Miller, Chairman, H.Comm. on Educ. & Labor).

106 Ledbetter House Hearing, supra note 14, at 3 (statement of George Miller,Chairman, H. Comm. on Education and Labor).

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V. THE LILLY LEDBETTER FAIR PAY ACT

"Reason-andjustice-demand a different result. "107

The Supreme Court's sharp distinction between "discrete acts" ofdiscrimination and the "continuing effects" of past violations' 08 influencedhundreds of subsequent court decisions,'109 impeding justice by allowingstatutes of limitations to be "twisted by courts to limit the scope and thrust ofcivil rights laws." 110 Lilly Ledbetter's personal story, and the injusticesperpetuated by the Ledbetter decision, provided the impetus for "women topush back on the dominant norms of the Court's conservative majority and toelaborate their own stories." II Advocates pushed for the law'sacknowledgement of the various forms of sex discrimination in our society,including the acknowledgement of both subtle and blatant discriminatoryacts.1 112

Responding to the events and circumstances surrounding the Ledbetterdecision,"13 Congress acted to correct the Court's narrow interpretation of

10 1]d at 4.108 Ledbetter, 550 U.S. at 638-40 (finding that receiving a paycheck that perpetuates

the effects of pay decisions made in the past does not violate the law when an employer'srecent actions have no discriminatory purpose).

109 See Robert Pear, Justices' Ruling in Discrimination Case May Draw QuickAction by Obama, N.Y. TIMEs, Jan. 5, 2009, at Al 13 (reporting that courts around thecountry cited the Ledbetter decision hundreds of times as a reason for rejecting lawsuitsclaiming discrimination based on race, sex, age, and disability, without regard to theunderlying merits of the individual cases, including cases involving Title VII, the AgeDiscrimination in Employment Act, the Fair Housing Act, and Title IX).

110 See Garcia v. Brockway, 526 F.3d 456, 466 (9th Cir. 2008) (Pregerson, J. &Reinhardt, J., dissenting) (responding to the majority's finding that while the plaintifffiled suit within two years of renting the apartment, he failed to timely challenge the"discriminatory housing practice," which began running ten years earlier whenconstruction of the building was complete); see also Pear, supra note 109, at A 13(identifying federal cases applying Ledbetter and reversing prior decision in favor of theemployer).

I"I See Lani Guinier, Demosprudence Through Dissent, 122 HARv. L. REv. 4, 42(2008) (ascribing the credit to Justice Ginsburg's provocative dissenting opinion).

112 See Collins, supra note 2; see also Chamallas, supra note 98, at 1038 (noting thedeep understanding of gender bias present in Ginsburg's opinions, which merits herreputation as a judicial champion of gender equality).

11 See H.R. REP. No. 110-237, at 32-33 (2007). The House Report noted that theLedbetter decision was almost immediately met with criticisms from plaintiffs'advocates; the trial bar, and others in the civil rights community, claiming:

[T]he decision represented a radical departure from established law validating the"paycheck rule." The Supreme Court's decision "severely weakens remedies for

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Title VIII14 by passing the Lilly Ledbetter Fair Pay Act (LLFPA).115 With itsenactment, Congress attempted to "strike the right balance" between theemployer and employee interests in Title V1I claims without tipping thebalance too far in either one's favor. 116 Finding that the Ledbetter decisionsignificantly impaired statutory protections against discrimination incompensation, Congress adopted the LLFPA to codify the "paycheck accrualrule" in discriminatory pay claims.' 17 With its codification, the time periodfor filing a pay discrimination charge with the EEOC' 1 8 now restarts eachtime an employee receives a paycheck reflecting a discriminatory paydecision. 119 The LLFPA amends the existing statutory filing period for Title

employees who have faced wage discrimination and represents a flawedinterpretation of our civil rights laws," said the National Women's Law Center. "Notonly does the ruling ignore the reality of pay discrimination, it also cripples thelaw's intent to address it, and undermines the incentive for employers to prevent andcorrect it. "The National Partnership for Women & Families described the decisionas "a painful and costly step backward for the nation and a deep disappointment tothose of us who want to see strong measures in place to give all workers meaningfulprotections against discrimination."

Id.114 See Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, § 2(l), 123 Stat. 5,

5 (2009).115 See id. (citing the decision specifically, stating: "The Supreme Court in Ledbetter

... significantly impairs statutory protections against discrimination in compensation thatCongress established and that have been bedrock principles of American law fordecades."); see also S. REP. No. 92-415, at 6 (197 1) (stating that, consistent with the 1971amendments, Congress intended Title V1I to address the economic harm-and theresulting social effects-from discrimination in pay).

1 16 Ledbetter House Hearing, supra note 14, at 5-6 (statement of Howard P. "Buck"'McKeon, Senior Republican Member, H. Comm. on Educ. & Labor).

117 42 U.S.C.A. § 2000e-5 (West 2010) (appearing in "Revision Notes andLegislative Reports").

118 42 U.S.C. § 2000e-5(e)(1) (2006).119 See 42 U. S.C. § 2000e-5(e)(3) (2006 & Supp. 20 10). The LLFPA applies to: the

Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-34 (2006); theRehabilitation Act of 1973, 29 U.S.C. §§ 701-97 (2006); Title VII of the Civil Rights Actof 1964, 42 U.S.C. § 2000e (2006); Americans with Disabilities Act of 1990, 42 U.S.C.§§ 12101-300 (2006), but not the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (2006). Tobring an EPA claim, the plaintiff must have a comparator of "equal work," which is notrequired to bring a compensation claim for sex discrimination under Title V11. Iaddition, "Title VII requires a showing of intent. In practical effect, 'if the trier of fact isin equipoise about whether the wage differential is motivated by gender discrimination,'Title VH compels a verdict for the employer, while the EPA compels a verdict for theplaintiff." Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 659 (Ginsburg, J.,dissenting) (quoting 2 CHARLEs A. SULLIVAN, MICHAEL J. ZIMMER, & REBECCA HAMN4ERWHITE, EMPLoYMENT DIsCRiMiNATioN: LAW AND PRACTICE § 7.08[IF][3], at 532 (3d ed.2002)).

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VII and other federal discrimination laws 120 by codifying the "paycheckaccrual rule":

[A]n unlawful employment practice occurs, with respect to discriminationin compensation in violation of this title, when a discriminatorycompensation decision or other practice is adopted, when an individualbecomes subject to a discriminatory compensation decision or otherpractice, or when an individual is affected by application of adiscriminatory compensation decision or other practice, including each timewages, benefits, or other compensation is paid, resulting in whole or in partfrom such a decision or other practice.'12 1

In addition to codifying the "paycheck accrual rule," the LLFPA appliesretroactively to claims pending on or after May 28, 2007, the day before theSupreme Court issued the Ledbetter decision. 122 Congress also authorizedrecovery of back-pay for up to two years preceding the filing of the EEOCcharge for employees making a successful discriminatory compensationdecision claim under the LLFPA. 12 3

While the LLFPA remedies the injustice created by the Ledbetterdecision, the courts' broad interpretation and application of the statute createsa similar injustice for employers. The majority's holding in Ledbetter failedto recognize the realities of wage discrimination, requiring an employee tofile a complaint with the EEOC under circumstances in which it would beimpossible to know that a discriminatory decision had been made, therebydiminishing an employee's power to bring a claim. The LLFPA was enactedto remedy this imbalance of power. However, courts' subsequentinterpretation of the Act has created a power shift in the opposite direction,against the employer. 124 The inconsistent approach to interpreting the

120 See discussion and statutes cited supra note 119.121 42 U.S.C. § 2000e-5(e)(3)(A) (2006 & Supp. 2010).122 Id. § 2000e-5 note; Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, § 6,

123 Stat. 5, 7 (2009).123 42 U.S.C. § 2000e-5(e)(3)(B); H.R. REP. No. 110-237, at 19 (2007) ("This

section is added to ensure that back pay in cases such as Ledbetter are not limited to 180days. The statute of limitations period and the back pay recovery period are two separateperiods in the Act."); see also Mikula v. Allegheny Cnty., 583 F.3d 181 (3d Cir. 2009).The Third Circuit decision creates the impression that the recovery period is limited to300 days rather than two years, but upon review the Mikula court was faced with a statuteof limitations issue and not a limitation on recovery of back-pay. Mikula, 583 F.3d at186-87.

124 See Jason R. Bent, "f~at the Lilly Ledbetter Fair Pay Act Doesn't Do: 'DiscreteActs' and the Future of Pattern or Practice Litigation, 33 RUTGERs L. REc. 31, 37 (2009)(noting that a legislative solution should attempt "to strike an appropriate balancebetween the legitimate interests of employers in obtaining reasonable repose from stale

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LLFPA stems from the statute's inclusion of "other practice" and in someinstances has created a broadening of the 180-day filing period for claimsother than "discriminatory compensation decisions." 25

VI. THE COURTS' INCONSISTENT INTERPRETATION OF THE LILLYLEDBETTER FAR PAY ACT

After the amendment of the LLFPA, the statute of limitations for federaldiscrimination statutes now defines an "unlawful employment practice" asoccurring every time an employee is subject "to a discriminatorycompensation decision or other practice,"' 26 with a new claim occurring eachtime the employee receives a paycheck affected by an earlier "discriminatorycompensation decision or other practice."'127 Congress enacted the LLFPA toabrogate the Ledbetter decision, 128 allowing employees to bring a claim forpay discrimination as long as they receive one paycheck affected by adiscriminatory pay decision within the limitations period but to otherwiseleave the existing case law alone.' 29 The statute's language, "compensationdecision or other practice," leaves open the question of whether "otherpractices" include the types of "discrete acts" identified in Morgan-"termination, failure to promote, denial of transfer, or refusal to hire"' 30-which would otherwise require an individual to file a charge ofdiscrimination within 180 days of the date of the act or lose the ability torecover for it.13 1

Not surprisingly, courts have taken the language, "compensation decisionor other practice," and interpreted it differently. Some, expressing the sameconcerns as those opposed to the bill's initial intrductjon,132 have refused to

claims and the competing interests of plaintiffs in having a reasonable opportunity tolearn of the discriminatory nature of the employment decision that affected them").

125 See cases cited infra note 153.126 Section 2000e- 16(f) expressly states that, at least with respect to claims against

the federal government, § 2000e-5(e)(3) applies only "to complaints of discrimination incompensation." 42 U.S.C. § 2000e-16(f) (2006).

127 Id. § 2000e-5(e)(3)(A).128 See Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, § 2, 123 Stat. 5, 5

(2009) ("The Supreme Court in Ledbetter ... significantly impairs statutory protectionsagainst discrimination in compensation that Congress established and that have beenbedrock principles of American law for decades.").

129 See id.13 0 Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002).131 Id132 See OFFICE OF MGMT. & BUDGET, EXECUTIVE OFFICE OF THE PRESIDENT,

STATEMENT OF ADMINISTRATION POLICY: H.R. 283-LILLY LEDBETTER FAIR PAY ACT OF2007 (2007). ("[T]he bill far exceeds the stated purpose of undoing the Court's decision

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read "other practices" to reach the discrete decisions of promotion ortermination 33 while others have allowed previously time-barred employmentdecisions that indirectly affect compensation but are not themselvesconsidered "compensation decisions" to be included.' 34 The courts' failure toapply a universal analytical framework creates instability and inconsistencyin discriminatory pay decisions, with the broader reading taken by somecourts having a detrimental effect on the employment relationship and, inturn, the economy.135 The LLFPA was enacted to correct the Court's narrowinterpretation in Ledbetter,136 but the broader reading of "other practices"breathes new "life into prior, uncharged discrimination"137 and is contrary toboth the policy justifications offered in Justice Ginsburg's dissent' 38 andCongress's intent'I39-tipping the balance too far in the employee's favor.'140

in Ledbetter by extending the expanded statute of limitations to any 'other practice' thatremotely affects an individual's wages, benefits, or other compensation in the future. Thiscould effectively waive the statute of limitations for a wide variety of claims (such aspromotion and arguably even termination decisions) traditionally regarded as actionableonly when they occur.").

133 See cases cited infra note 152.134 See cases cited infra note 153.135 See Katharine F. Nelson, The 1990 Federal "Fallback" Statute of Limitations:

Limitations by Default, 72 NEB. L. REv. 454, 464-65 (1993) (noting that statutes oflimitations help to provide predictability in our economy, which in turn has a stabilizingeffect on conmmercial and property transactions by allowing employers to plan andarrange commercial transactions accordingly).

136 See H.R. REP'. No. 110-23 7, at 3 (2007) (stating that the Act "seeks to reverse theSupreme Court's May 29, 2007, [sic] ruling in Ledbetter v. Goodyear, whichdramatically restricted the time period for filing pay discrimination claims under Title VIIand made it more difficult for workers to stand up for their basic rights at work").

13 Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 619 (2007).138 Id at 650-51 (Ginsburg, J., dissenting) (explaining the justification for

"separating pay claims from the discrete employment actions identified in Morgan").Notably, Justice Ginsburg emphasized how an employer gains from sex-based paydisparities in a way it does not from a discriminatory denial of promotion, hiring, ortransfer, stating:

When a male employee is selected over a female for a higher level position,someone still gets the promotion and is paid a higher salary; the employer is notenriched. But when a woman is paid less than a similarly situated man, the employerreduces its costs each time the pay differential is implemented.

Id.13 See H.R. REP. No. 110-237, at 7 (2007). Due to the fact that "pay discrimination

is rarely accompanied by circumstances suggestive of bias . .. [ujnlike hiring, firing,promotion and demotion decisions where an individual immediately knows that she hassuffered an adverse employment action," the Act is necessary to prevent injustice, as inLedbetter's case. Id

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A. "Breath[ing] Life Into Prior, Uncharged Discrimination"'14 '

Easily identifiable, discrete employment decisions, such as terminations,promotions, demotions, and transfers, all typically entail a change in anemployee's pay rate, putting an employee on notice that the decision may bepretextual for discrimination. 142 Allowing an employee to bring a paydiscrimination claim that is a result of one of these fuilly communicateddiscrete acts, which, unlike the secretive nature of Ledbetter's paydiscrimination, are overt and easily identifiable, effectively rejects theholding of Morgan and establishes the "continuing effects" doctrine aslaw.'143

Courts' interpreting "other practices" to include easily identifiable,discrete acts 144 broadens the reach of the LLFPA beyond what Congressintended and places the employer at an unfair disadvantage. For example, thedistrict court in Gentry v. Jackson State University, expansively reading theLLFPA, found that "it can hardly be denied that the denial of tenure was a'discrete' act of which plaintiff was obviously aware," 145 but because theplaintiff asserted that "the denial of tenure also denied her a salary increase,"the plaintiffs claim was a "compensation decision" within the meaning ofthe LLFPA.146 This interpretation of the LLFPA does not take into accountthe distinction between discrete acts, which are obvious and, therefore, placean employee on notice that the pay decision could be a pretext for

140 See Ledbetter House Hearing, supra note 14, at 6 (Howard P. "Buck" McKeon,Senior Republican Member, H. Comm. on Educ. & Labor) (noting that the purpose of theAct is to "strike the right balance without tipping it too far toward employers andemployees").

141 Ledbetter, 550 U.S. at 619 (syllabus) (justifying its rejection of Ledbetter's paydiscrimination claim).

142 See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002)(establishing a non-exhaustive list of discrete acts: termination, failure to promote, denialof transfer, or refusal to hire, and requiring an individual to file a charge within 180 daysof the date of the act or lose the ability to recover).

143 See id at 109 (noting that by "choosing what are obviously quite short deadlines,Congress clearly intended to encourage the prompt processing of all charges ofemployment discrimination"); see also Ledbetter, 550 U.S. at 630 (quoting the samelanguage from Morgan); Bent, supra note 124, at 36 (discussing Ledbetter and thecompeting interests of employers and employees).

14 See Sullivan, supra note 6, at 527 (noting that one factor in LLFPA achieving itsfull potential will depend on how the courts interpret "other practices"').

14 Gentry v. Jackson State Univ., 610 F. Supp. 2d 564, 567 (S.D. Miss. 2009).14 6 Id. (emphasis added).

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discrimination-the type of covert discrimination suffered by Ledbetter-which the Act is intended to remedy.'147

The plaintiff in Gentry was an associate professor who was denied tenurein 2004 but did not file a claim of sex discrimination with the EEOC until2006.148 The court found the denial of tenure qualified as a "compensationdecision" or "other practice" affecting compensation within the meaning ofthe LLFPA, which allowed the plaintiff to pursue the otherwise "stale"claim. 14 9 Thus, the court allowed the plaintiff's argument-that the denial oftenure prevented a salary increase and, was a compensation decisionnegatively affecting the plaintiffs compensation-to prevail two years afterthe overt and discrete act occurred. At trial, the jury awarded the plaintiff$100,000 on claims that the university retaliated against her in violation ofTitle VII by placing her on a non-tenure job track and by not allowing her tochair dissertation committees after she complained of sex discrimination.'150

While the jury rejected Gentry's sex discrimination claim for denial of tenureand related salary increase, it awarded her the total amount of damages sherequested for all three claims. 15 1

B. Interpreting the LLFPA Narrowly

Some district courts have distinguished discrete discriminatory acts, suchas failure-to-promote claims from compensation claims, finding such claimstime-barred under LLFPA if the plaintiff does not file an EEOC complaintwithin 180 days of the discriminatory action. 152

147 See H.R. REP. No. 110-237, at 3 (2007).148 Gentry, 610 F. Supp. 2d at 566.

150 See Retaliation: Jury Awards $100,000 to Professor Claiming Sex BiasComplaints Led to Non-Tenured Job, Daily Lab. Rep. (BNA) No. 226, at A-7 (Nov. 27,2009), available at http://news.bna.com/dlln/ (follow "News Archive" hyperlink; thenclick through " 11/27/2009" and "News" in the drop-down menu).

151 See id The "three claims" referred to by the author are the plaintiff s retaliationclaim, promotion claim, and compensation claim. Id.

152 See Grant v. Pathmark Stores, Inc., No. 06 Civ 5755(JGK), 2009 WTL 2263795,at *7-9 (S.D.N.Y. July 29, 2009) (rejecting the application of the Fair Pay Act to failure-to-promote claims); Johnson v. District of Columbia, 632 F. Supp. 2d 20, 23 (D.D.C.2009) (holding that the Act revives claims of pay lower than that of similarly situatedemployees, but not retaliation claims); Chelgren v. S. Holland Sch. Dist. No. 150, No. 07C 6931, 2009 WL 1789350, at *9 (N.D. 111. June 24, 2009) (holding that failure topromote qualifies as a discrete act of discrimination and it is untimely when it occursmore than 300 days before an EEOC charge was filed); Richards v. Johnson & Johnson,Inc., Civ. Action No. 05-3663 (KSH), 2009 WL 1562952, at *9 (D.N.J. June 2, 2009)(holding that the claim that the employer had failed to hire the plaintiff for moreadvanced positions was not revived by the Act because the LLFPA "does not save

2010] 1267


Unlike the court's interpretation in Gentry, some courts have recognizedthe important distinction between fully communicated, discretediscriminatory acts, and the insidious, subtle acts that the LLFPA is intendedto target.'15 3 in Bush v. Orange County Corr. Dep 't, the female African-American plaintiffs believed their 1990 transfers were promotions, butlearned sixteen years later that the transfers were documented by theiremployer as voluntary demotions that had reduced their pay without theirknowledge. 154 The court found that the plaintiffs' claims fell within theLLFPA and were not administratively time-barred because the plaintiffs filedtheir complaint within 180 days of their last discriminatory paycheck.' 55

The LLFPA showing that was intended to remedy the type of"compensation decision or other practice" in Ledbetter is analogous to thesituation in Bush but inconsistent with Gentry.'156 The approach in Gentryplaces a great burden on the employer to defend what, if not for

otherwise untimely claims outside the discriminatory compensation context"); Rowlandv. Certainteed Corp., Civ. Action No. 08-3671, 2009 WL 1444413, at *6 (E.D. Pa. May21, 2009) (holding that the LLFPA does not cover the ongoing consequences from thedenial of a promotion because that would "eliminate any statute of limitations withrespect to reporting discrimination [in promotion] to the appropriate agency, a change inlaw not found in the Ledbetter Act"); Vuong v. New York Life Ins. Co., No. 03 Civ.1075(TPG), 2009 WL 306391, at *7-..9 (S.D.N.Y. Feb. 6, 2009) (holding that the failure-to-promote claims were time-barred, but applying the LLFPA to the discriminatorycompensation claim).

153 See Mikula v. Allegheny Cnty., 583 F.3d 181, 186-87 (3d Cir. 2009) (finding thefailure to answer the request for a raise was timely under the LLFPA); Shockley v.Minner, Civil Action No. 06-478 JJF, 2009 WL 866792, at *1 (D. Del. Mar. 31, 2009)(applying the LLFPA to find the failure-to-promote claim timely); Gertskis v. New YorkCity Dep't of Health and Mental Hygiene, No. 07 Civ. 2235(TPG), 2009 WL 812263, at*4 (S.D.N.Y. Mar. 26, 2009) (finding the claim for discriminatory failure to promoteplaintiff to the Associate Chemist position timely); Gilmore v. Macy's Retail, No. 06-3020(JBS). 2009 WL 305045, at *2-..3 (D.N.J. Feb. 4, 2009) (finding a failure-to-promoteclaim timely under the LLFPA, but unsuccessful on the merits).

15 Bush v. Orange Cnty. Corr. Dep't, 597 F. Supp. 2d 1293, 1295 (M.D. Fla. 2009).155 Id. at 1296 (finding the claim timely, but unsuccessful on the merits).156 In addition to the federal courts' inconsistent interpretations, state courts have

diverged when deciding whether or not the LLFPA applies to state law. Compare Klebev. Univ. of Tex. Sys., 649 F. Supp. 2d 568, 571 (W.D. Tex. 2009) (reading the LLFPA toapply to state anti-discrimination laws without state legislature amending state statutes),with Alexander v. Seton Hall Univ., 983 A.2d 1128, 1136-37 (N.J. Super. Ct. App. Div.2009) ("[T]here is some merit for the proposition that we should not follow Ledbetter.However, we believe that we would be more faithful to our state jurisprudence byfollowing Ledbetter, particularly in the absence of a post-Ledbetter amendment to LAD.We thus follow Title VII and LAD jurisprudence as it stood at all relevant times becauseno amendments have been made to the LAD which would affect its construction at thetime when Ledbetter was decided.").

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compensation being interconnected with the promotion, would be a staleclaim in a case where the ftilly communicated decision not to promote shouldhave placed the employee on notice that she had been subjected to adiscriminatory pay decision at the time it was made.157 Support showing thatCongress intended the LLFPA to apply in a broader context than situationssimilar to Ledbetter's is unfounded and contrary to the explicit languageappearing in the statute. 158 While the threat of this expansive interpretation ofthe Act forces employers to assess their employee review practices anddevelop clear guidelines to measure performance of their employees, whichis arguably beneficial to both the employer and employee,' 59 it also places atremendous burden on the employer to defend against stale claims. 16 0

157 Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 650-51 (2007)(Ginsburg, J., dissenting). Justice Ginsburg noted the differences between failure-to-promote and compensation claims:

[Sileparating pay claims from the discrete employment actions identified in Morgan,an employer gains from sex-based pay disparities in a way it does not from adiscriminatory denial of promotion, hiring, or transfer. When a male employee isselected over a female for a higher level position, someone still gets the promotionand is paid a higher salary; the employer is not enriched.

Id (emphasis added).158 Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, § 2(l), 123 Stat. 5, 5

(2009) ("The Ledbetter decision undermines those statutory protections by undulyrestricting the time period in which victims of discrimination can challenge and recoverfor discriminatory compensation decisions or other practices, contrary to the intent ofCongress.").

159 See KATHERINE C. NAuF, To LOOK LIKE AMERICA: DISMANTLING BARRIERS FORWOMEN AND NOaRrTIES IN GOvERNMENT 197-98 (2001) (identifying the "[rle-examination of the organization's structure, culture, and management systems" as anapproach to effectively manage diversity in the workplace).

160 See Robin E. Shea et al., The Impact of the Lilly Ledbetter Fair Pay Act of 2009,in ASPATORE SPECIAL REPORT 17 (2009) (highlighting the financial and socialramification the Act will likely have on businesses); Bent, supra note 124, at 36 (noting"1employers will face difficultly in gathering, preserving, and presenting the evidencenecessary to defend against . .. claims" of "discrete act[s] of discrimination taking placeyears ago"); see also Ledbetter Senate Hearing, supra note 72, at 49 (prepared statementof Hon. Michael B. Enzi, Member, S. Comm. on Health, Educ., Labor, & Pensions).Senator Enzi addressed the policy reason for statute of limitations, stating:

First, a statute of limitations encourages the prompt and vigorous pursuit ofimportant protected righ~ts. This is particularly true in the instance of employmentdiscrimination. ... [Tihe drafters [of Title VII] adopted a relatively short limitationsperiod to ensure the quick eradication of discriminatory workplace practices.Statutes of limitation are designed to encourage the prompt resolution of contestedclaims; and, this is particularly important in the context of employmentdiscrimination claims. An unresolved allegation or suspicion of discrimination isparticularly corrosive in the workplace where the parties to a potential claim are in

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C. The Necessity of a Fact-Intensive Analysis

Balancing the interests of both the employee and employer, the LLFPAis intended to apply to "discrimination in compensation" cases only, not to"discrete personnel decisions, like promotions and discharges."16 1 The Actwas intended to address the unfair result in Ledbetter, where the plaintiff hadno way of knowing she was suffering from a discriminatory pay decision-receiving lower pay than males in the same position. 162 Therefore, it isnecessary for a court to determine whether the plaintiff in a particular casewas subject to discrimination similar to Ledbetter's, in which he or she hadno way of knowing of the discriminatory act at the time the discriminationoccurred, in order to determine if the Act should apply. The Act is notintended to apply to situations where employees are aware, or should beaware, of a pretextual discriminatory act and its subsequent effects on pay,yet fail to file a claim within the 180-day period. To allow such claims underthe LLFPA exposes employers to otherwise time-barred complaints,encouraging employees to abuse the system by waiting to file claims until anemployer may no longer have documentation available to defend itself. Thisinterpretation undermines the balance Congress struck between the interestsof the plaintiff, the defendant, and society as a whole when enacting theLLFPA.163

As Justice Ginsburg established in the Ledbetter dissent, and Congressreaffirmed when enacting the LLFPA, requiring the plaintiff to file adiscrimination claim within 180 days of the discriminatory pay decision isunjust in some cases because certain forms of pay discrimination are difficultto detect, with victims only discovering pay discrepancy over time.164 It was

daily contact, and where the potential claim has effect, both direct and indirect, oneveryone in the workforce. The drafters wisely determined that such matters cannotbe allowed to fester, and should be addressed promptly and resolved as quickly aspossible.

Id161 See 155 CONG. REC. S739, S757 (daily ed. Jan. 22, 2009) (statement of Sen.

Mikulski) (expressing concern that the bill "could apply to discrete personnel decisions,like promotions and discharges. That's not true. The bill specifically says that it isaddressing 'discrimination in compensation.' That limiting language means that it alreadyonly covers such claims-nothing more, nothing less.").

162 Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, § 2(2), 123 Stat. 5, 5(2009) ("The limitation imposed by the Court on the filing of discriminatorycompensation claims ignores the reality of wage discrimination and is at odds with therobust application of the civil rights laws that Congress intended.").

163 See supra Part 1H (discussing statute of limitations policy).

16 Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 649-51 (2007)(Ginsburg, J., dissenting); see also Ledbetter Senate Hearing, supra note 72, at 16-17

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unfair to begin running the 180-day filing period from the day the originalcompensation decision was made in Ledbetter' s case because thecomparative information necessary to assess pay disparities, suggestingdiscrimination, "is often hidden from the employee's view." 165 Addressingthe differences between pay discrimination and other overt, discrete acts,Justice Ginsburg specifically noted: "Pay disparities are .. . significantlydifferent from adverse actions 'such as termination, failure to promote,.... orrefusal to hire,' all involving fully communicated discrete acts, 'easy toidentify' as discriminatory."16 6 Therefore, the LLFPA needs to be applied ina uniform manner in order to ensure that courts do not interpret it broadly toinclude' these fully communicated, easy-to-identify discrete acts ofdiscrimination.

V1I. SOLUTION: THREE-STEP ANALYTICAL FRAMEWORK

Title VII requires a claim to be filed with the EEOC within 180 days of adiscriminatory act.167 The EEOC filing requirement is analogous to a statuteof limitations, barring all claims arising outside the 180-day filing period. Inorder to preserve the balance of the employee and employer interests struckby -the EEOC filing requirement, 168 it is necessary to establish a predictableanalytical framework to determine a claim's timeliness. This frameworkentails a three-step process (the Three-Step Analytical Framework) fordetermining whether a discrimination claim meets the 180-day filingrequirement: (1) classifying the claims into one of three categories-adiscrete act, a hostile work environment claim, or a discriminatorycompensation decision or other practice; (2) based on the step-one category,identifying the applicable statute or case precedent; and (3) applying thestatute or case precedent to determine the timeliness of the claim.

To understand how this framework leads to a consistent application ofSupreme Court precedent and the LLFPA discussed in Parts III and VI of thisNote, it is necessary to first explain each step separately and then to apply theframework to a hypothetical discrimination claim.

(statement of Samuel R. Bagenstos, Professor of Law & Associate Dean, WashingtonUniversity) ("[Elmployees are unlikely to know that they have gotten paid less than theirco-workers. They are unlikely to attribute differences in pay to discrimination, and theyare unlikely to bring a lawsuit after the initial discriminatory pay decision even if they doknow they have been the victims of discrimination because of the small stakes of anyincremental pay discrimination decision.").

165 Ledbetter, 550 U.S. at 645 (Ginsburg, J., dissenting).16 6 Id. (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002)).167 42 U.S.C. § 2000e-5(e)(l) (2006).168 See supra Part III (discussing statute of limitations policy).

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1272 OHIO STATE LA WJOURNrAL [o.7:

A. Step One: Classifying the Claims into One of Three Categories

To correctly categorize a discriminatory compensation decision into oneof three categories-a discrete act, a hostile work environment claim, or adiscriminatory compensation decision or other practice-it is necessary todisentangle a compensation claim from other claims of discrimination in aparticular case. After the enactment of the LLFPA, the courts' diffiCulty16 9 incorrectly categorizing discriminatory pay claims stems from a failure to takethis first step of identify'ing, and then separately analyzing, the discriminatorycompensation claim.

A discrimination claim falls into the category of a "discrete act," asdistinguished from a hostile work environment or discriminatorycompensation decision or other practice, if the discriminatory act is publicand has been fully communicated.'17 0 Acts such as promotions, transfers,hirings, and firings are discrete acts because they are generally known bycoworkers and place an individual employee on notice that discriminationcould be involved. In contrast, a "hostile work environment" claim does notentail one discrete act, but requires a series of individual acts taken togetherto create an "environent."171 A "hostile work environment" does not fallunder the discrete act category because the actionable wrong is theenvironment, not the individual acts. 172 Finally, a claim falls under the thirdcategory of a "discriminatory compensation decision or other practice" if anemployer pays a different wage, or provides different benefits, to similarlysituated employees. 173

Therefore, when categorizing a discrimination claim under Step One, it isnecessary to determine whether the allegation involves: (a) a fullycommunicated discrete public act; (b) an act that, when coupled with otheracts, creates a hostile work environment; or (c) a claim of pay disparity whencompared to similarly situated employees.

169 See supra Part VI.170 See supra Part HII.171 See supra Part 111.172 See supra Part 111.173 See Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 522 (5th Cir. 2008) (noting

that a prima facie case of "discrimination in compensation" under Title VH involvesshowing plaintiff "was paid less than a non-member [of the protected class] for workrequiring substantially the same responsibility"); Anderson v. Zubieta, 180 F.3d 329, 338(D.C. Cir. 1999) (plaintiff alleging "wage discrimination" under Title VH must show hewas "performing work substantially equal to that of ... employees ... compensated athigher rates" (internal quotation marks omitted)); MacPherson v. Univ. of Montevallo,922 F.2d 766, 774 (11 th Cir. 199 1) (proof of "discrimination in compensation" underADEA requires showing "similarly situated persons outside the protected age groupreceived higher wages").

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B. Step Two: Identifying the Applicable Statute or Case Precedent

After categorizing the discrimination claim, the task of identify'ing andapplying the applicable case precedent or statute is straightforward. Ifcategorized as a "discrete act," Morgan applies with the discrete acttriggering the 180-day filing period.'174 If categorized as a "hostile workenvironment," Morgan also applies, but the 180-day filing period ismeasured from the most recent discriminatory act constituting the claim.' 75

Finally, if the claim involves discriminatory compensation, the LLFPAapplies and the 180-day filing period begins to run from the day of the lastpaycheck reflecting discriminatory compensation.'176

C. Step Three:~ Applying the Applicable Statute or Case Precedent tothe Facts

The third step in the analytical framework requires the application of thestatute or case precedent based on the category of the claim. In order toprovide a thorough explanation of the proposed framework, it is necessary toestablish a hypothetical scenario to complete the third step of applying caseprecedent or the LLFPA to the facts of a case.

Using, in part, a district court case as the basis for our facts, 17 7 thehypothetical involves a sex-based Title VII discrimination claim. Sally, afemale sales representative working for a pharmaceutical company, allegesthat male employees in the same position receive a higher salary and largerbonuses. In addition, Sally claims her employer promoted a male, instead ofSally, to regional manager because of her gender on February 20, 2009. Shelearned of the higher salaries and larger bonuses only recently when someoneleft an anonymous tip on her desk. The tip informed Sally that she wasinitially hired over fifteen years ago at a lower salary than men in the sameposition and with her same experience and, in addition, she discovered thatshe had received lower bonuses than her male counterparts even though sheconsistently outperformed them by all measures. The bonuses had beenallocated over the last fifteen years, with the last bonus given in December of2007. No one received a bonus in 2008 because the economy was so poorand the company was struggling. Sally filed a claim with the EEOC uponreceiving the tip on December 15, 2009.

In order to determine if Sally's claim is timely within the 180-day filing

174 See supra Part 111.175 See supra Part 111.176 See supra Part V.177 See Harris v. Auxilium Pharm., Inc., 664 F. Supp. 2d 711, 744-47 (S.D. Tex.

2009).

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period, it is necessary to apply the Three-Step Analytical Framework by: (1)classifying her claims into one of three categories-a discrete act, a hostilework environment claim, or a discriminatory compensation decision or otherpractice; (2) based on the category, identifying the applicable statute or caseprecedent; and (3) applying the statute or case precedent to determine thetimeliness of the claim. Applying Step One, it must be determined whetherthe allegation involves: (a) a fully communicated discrete public act; (b) anact that, when coupled with other acts, creates a hostile work environment; or(c) a claim of pay disparity when compared to similarly situated employees.Based on the facts of the hypothetical, Sally potentially has two claims: acompensation claim arising from the disparity in her salary and bonuses overthe past fifteen years and a failure-to-promote claim resulting from theFebruary 20, 2009 decision.

1. Sally 's Compensation Claim: An Application of the LLFPA

Analyzing the compensation claim first, it does not fit into category (a)as a fuilly communicated discrete public act because Sally was not aware ofthe salary and bonus differences until she received the anonymous tip.Sally's employer is similar to most employers and does not make salary andbonus schedules public; therefore, the decision to pay Sally less than hermale counterparts, while a discrete act when it was made, was not a fullycommunicated public act that would place Sally on notice of discriminationbecause of her sex.178 The act of paying Sally a lower starting salary andsmaller bonuses is not an act that, taken with other acts, creates a hostilework environment claim; therefore, category (b) also does not apply.However, the salary and bonus decisions are claims of pay disparity, as Sallyis being paid less than similarly situated males. Therefore, Sally's allegationfalls into category (c) as a discriminatory pay decision.

Applying Step Two of the analytical framework; because this is adiscriminatory pay decision, the LLFPA applies to determine whether or notSally timely filed her EEOC complaint.

Moving to Step Three and applying the LLFPA to Sally's claim, Sallymeets the filing requirement since she filed her complaint within 180 days ofreceiving a paycheck reflecting the discriminatory pay decision. Note,however, that the conclusion in Sally's case is different than the conclusioncourts would have found if the LLFPA had not been enacted.'179 Without theLLFPA, Sally's claim would have been time-barred because the filing periodwould have started running the day the discriminatory pay decisions were

178 This portion of the facts is similar to the facts in Lilly Ledbetter's case. Seesupra Part H1.

179 See supra Part IV.

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made, with the first being over fifteen years ago, and not from the date of herlast paycheck. However even under the LLFPA, Sally cannot recover herbonuses since those pay decisions were not reflected in a paycheck receivedwithin the last 180 days. While Sally is not completely barred from recoveryfor the discriminatory pay under the LLFPA, she is limited to receiving twoyears of back pay. 180

2. Sally's Failure-to-Promote Claim: LLFPA Should Not Apply

Moving to Sally's failure-to-promote claim, and applying the Three-StepAnalytical Framework, one must conclude that the LLFPA does not apply.Analyzing the failure-to-promote claim under Step One, it must bedetermined what category the discriminatory act falls under: (a) a fullycommunicated discrete public act; (b) an act that, when coupled with otheracts, creates a hostile work environment; or (c) a claim of pay disparity whencompared to similarly situated employees. The failure-to-promote claimseems to fit best under "category (a)" as a fuilly communicated discrete act.Sally was aware when the decision was made that she did not receive thepromotion and if it was not announced publicly, she could have easilydiscovered that a male was appointed to the position upon realizing she wasnot the new regional manager. The decision not to promote Sally, but insteadto place a male in the position, is not a "category (b)" claim because it is nota part of a larger compilation of acts, creating a hostile work environment.The challenge in categorizing Sally's failure-to-promote claim is whether itis a "category (c)" claim, as the decision not to promote Sally likely resultedin a lost income opportunity.

The challenge this scenario presents is the same challenge district courtshave grappled with since the enactment of the LLFPA: does a failure-to-promote claim qualify as an "other practice" within the meaning of the Act?While the decision not to promote Sally likely results in lower pay, it is not asituation that Sally was unaware of when it occurred. Instead, the decisionwas a fully commnunicated discrete act and, therefore, while the decision doesaffect Sally's pay, it is not the type of secretive wage discrimination thatCongress intended to protect when enacting the LLFPA. 18 1

To fully understand the implications of recognizing Sally's failure-to-

180 See supra Part V.181 Congress found that "[tlhe limitation imposed by the Court [in Ledbetter] on the

filing of discriminatory compensation claims ignores the reality of wage discriminationand is at odds with the robust application of the civil rights laws that Congress intended."Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, § 2(2), 123 Stat. 5, 5 (2009)(emphasis added). Congress is referring to the wage discrimination in Ledbetter, whichwas kept secret and left her with no way of discovering the disparity in order to timelyfile an EEOC claim.

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promote claim as a fully communicated discrete act, as well as adiscriminatory pay decision under the LLFPA, it is necessary to move to StepTwo of our framework. Under Step Two, the rule established by caseprecedent or statute is identified based on the claim's category. In the case ofa fully communicated discrete act, the Morgan decision would apply andunder Step Three, the 180-day filing period would be triggered from the datethe promotion decision was made. Conversely, if the promotion decision is adiscriminatory pay decision, then the LLFPA applies and under Step Three,the 180-day filing period would be triggered on the date Sally received herlast paycheck reflecting the discriminatory pay.

These two results are at odds with one another and if allowed, would notonly undermine the Court's Morgan analysis, but would also provide thewrong incentive to employees. If the failure-to-promote claim is allowedunder the LLFPA, even though it qualifies as a fully communicated discreteact, then instead of encouraging employees to file with the EEOC as soon asthe decision has been made and communicated, employees could wait aslong as they want to bring the claim so long as they continue to receive apaycheck. This result is not only contrary to what Congress intended inenacting the LLFPA, it is also contrary to the policy behind the EEOC 180-day requirement.' 82 It would allow employees to wait to bring a claim, whichnot only makes it more difficult for employers to defend against these staleclaims as time passes, it allows potentially discriminatory behavior to gounchecked because the employer is not held accountable for its unjust actionsas soon as possible, which is what the 180-day requirement helps toenforce.'18 3

As supported by the policy reasons of the 180-day requirement andCongress's intent when enacting the LLFPA, Sally's failure-to-promoteclaim is not a claim of "discrimination in compensation," but a fullycommunicated discrete act triggering the 180-day filing period on the datethe decision was made, February 20, 2009. Applying the reasoning fromMorgan, the effects alone cannot breathe new life into past discrimination,and Sally is barred from bringing her claim because her EEOC complaintwas filed on December 15, 2009, more than 180 days after she leamned shefailed to receive the promotion.

VIII. CONCLUSION

The limitations period of the anti-discrimination statutes are intended toencourage employees to promptly assert their rights and to protect employersfrom the burden of defending against claims arising from employment

182 See supra Part V.183 See supra Part III.

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decisions that are long past.'184 The ruling in Ledbetter disrupted the balancestruck by the limitations period, and Congress, heeding Justice Ginsburg'scall, shifted the balance back to equilibrium by enacting the LLFPA. TheLLFPA was necessary to prevent injustice in cases like Ledbetter's and was areminder that discrimination based on sex is still embedded within society.Just as the Ledbetter majority failed to recognize the "real world" context towhich the Court applied the law,' 85 resulting in injustice for employees,some courts are failing to recognize the "real world" context to which theyare applying the LLFPA,186 resulting in injustice for employers. In eitherscenario, the failure to analyze the facts of each case leads to a blindapplication of the law, preventing the extinguishment of the intended ills theLLFPA was meant to address. As Justice Ginsburg so pointedly stated:

The realities of the workplace reveal why the discrimination with respect tocompensation that Ledbetter suffered does not fit within the category ofsingular discrete acts "easy to identify'." A worker knows immediately if sheis denied a promotion or transfer, if she is fired or refused employment. Andpromotions, transfers, hirings, and firings are generally public events,known to co-workers. When an employer makes a decision of such openand definitive character, an employee can immediately seek out anexplanation and evaluate it for pretext. Compensation disparities, incontrast, are often hidden from sight.'187

Recognizing this important distinction between public and private discreteacts, Congress enacted the LLFPA to prevent the injustice Ledbetter sufferedfrom occurring in the future.

In order to protect and preserve the delicate balance of theemployer/employee relationship, courts must recognize the context in whichthe LLFPA was enacted to address and apply the Three-Step AnalyticalFramework to avoid using the LLFPA as a blunt-force instrument. Courtsmust analyze the facts of each case to determine whether or not thediscriminatory act, which resulted in a pay discrepancy, is the type of

184 See Ledbetter Senate Hearing, supra note 72, at 28 (prepared statement of Eric

S. Dreiband, Partner, Akin Gump Strauss Hauer & Feld LLP) ("[L]imitations periods,while guaranteeing the protection of the civil rights laws to those who promptly asserttheir rights, also protect employers from the burden of defending claims arising fromemployment decisions that are long past." (internal quotation marks omitted) (quotingDel. State Coll. v. Ricks, 449 U.S. 250, 256-57 (1980))); CoRmAN, supra note 8, §1.1.

185 Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 649 (2007) (Ginsburg,J., dissenting).

186 See cases cited supra note 153.18 7 Ledbetter, 550 U.S. at 649 (Ginsburg, J., dissenting).

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"discriminatory compensation decision or other practice" the LLFPA waspassed to protect.'188

As Justice Ginsburg's dissent makes clear, compensation claims arefundamentally different from claims based on "discrete acts" because thediscrimination accumulates over an extended period of time: thediscrimination can take years to identify. The same is not true for failure-to-promote or demotion claims; these "public acts" place an employee on noticethat the decision could be a pretext for discrimination and therefore theunderlying reasoning and policy justification for enacting the LLFPA do notapply. In fact, by applying the LLFPA to these overt, discrete acts, too muchpower is given to the employees to the detriment of the employer, creating anequally unjust situation as the Court created in Ledbetter. 189

In order to reestablish and maintain the balance of employer/employeeinterests that Congress intended when enacting the LLFPA, courts mustdisentangle discrete employment acts from the resulting pay discrimination.Courts must first determine whether the discrete act is secretive, like the actleading to the pay disparity in Ledbetter, or if it is an overt and public act thatthe employee was aware of at the time of its occurrence, similar to thepromotions in Gentry. If the discriminatory act is overt and public, then thecourt should apply the Morgan discrete act analysis and deny the plaintiffsclaim if it falls outside the 180-day filing period. If the claim is more likeLedbetter and Bush, where the discriminatory pay decisions were keptprivate and only discoverable over time, then the LLFPA should apply toprevent injustice. Making the distinction as to whether the initialdiscriminatory pay decision stems from an act that is either covert or overt isessential to enforcing Title VII's statute of limitations in a fair andpredictable way, and necessary to maintain the balance of interests of theemployer, the employee, and society as a whole.

The LLFPA amends the federal anti-discrimination statutes to recognizethe unique challenges of discriminatory compensation claims and the natureof the workplace in which the claims arise. Reading the Act's terms broadlyto incorporate obvious and discrete acts of discrimination creates a similarand equally prejudicial effect on employers that the Ledbetter decisioncreated for employees. Therefore, the distinction as to whether the initial

188 See Bush v. Orange Cnty. Corr. Dep't, 597 F. Supp. 2d 1293, 1296-97 (M.D.Fla. 2009).

189 As Justice Ginsberg noted in the Ledbetter dissent, defenses, such as the defenseof laches, are available to protect employers from stale claims, that have yet to be used.See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 121-22 (2002) (to provelaches, an employer must demonstrate that (1) there was inexcusable delay on the part ofthe plaintiff in bringing the claim; and (2) there is prejudice to the defendant resultingfrom the delay); see also Sullivan, supra note 6, at 38-42 (noting that the defenses willprove critical for employers under the act).

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2010] ~FAIR PAYACT 17

discriminatory pay decision stems from an act that is either covert or overt isessential to establishing the balance necessary to further both the interests ofemployer and employees in the context of the "real world" workenvironment. This distinction is consistent with the concerns expressed inJustice Ginsburg's dissent, the statutory language of the LLFPA, andCongress's intent when enacting the statute. While it requires courts toanalyze the facts of each claim, it is a manageable rule, prevents injustice,and is consistent with Court precedent. 190

190 This approach reconciles Morgan, 536 U.S. 101 (discrete discriminatory actsmust be filed within 180 days from the date of occurrence); Ledbetter, 550 U.S. at 618("overt" pay decisions are discrete acts triggering the 180-day filing period); and the LillyLedbetter Fair Pay Act of 2009, Pub. L. No. 111-2, § 2, 123 Stat. 5, 5 (2009) (the filingperiod for a "covert" discriminatory pay decision is renewed upon receiving a paycheckreflecting the discrimination).

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